Alongside several UK organisations, we’re campaigning against the proposed changes to the Freedom of Information Act.
Now, the changes are just that – proposed ones – so you might think that it’s hard to do more than speculate over what they might mean for Freedom of Information in this country.
But wait! Here at mySociety, we are in touch with people and organisations who run Freedom of Information websites all over the world. Many of them have seen the introduction of such restrictions (and some have successfully challenged them).
So in this post, we gather together their experiences along with existing research, to provide evidence and context to the changes currently being discussed.
Perhaps you’d like to use some of the following examples when you write to your MP.
For a government to desire such restrictions is nothing new: a 2011 report by Toby Mendel for the World Bank* examines several countries which have been through exactly that (and, more cheerfully, lists those where the law was changed to extend FOI rights). One statistic stands out from that report:
Emily O’Reilly, the Irish information commissioner, noted that the impact of the amendments had been to reduce the rate of requests by 50 percent, to decrease requests (other than those for personal information) by 75 percent, and to cause a drop of 83 percent in requests by the media—all within one year.
Ireland introduced fees for initial requests, and also for any subsequent internal and independent reviews. They also extended protection to some government records showing the workings of civil servants, and to documents referring to security, defence and international relations. The decision was later reversed in order to “restore the balance”.
*Amending Access to Information Legislation: Legal and Political Issues by Toby Mendel, 2011
In Germany, we are told by Arne from the FOI website Frag den Staat, bodies may charge up to 500 € for the processing of information requests.
Fair enough, you might think — but let’s look at a couple of examples.
Like when the Ministry of Transport charged the maximum fee for the provision of data on railway infrastructure. They said that the fee covered the required inspections; they didn’t mention that the data could be found in PDFs that already existed internally.
Similarly, the Federal Office of Consumer Protection charged 500 € for answering eight questions about their website, asking about costs, usage and data protection: it’s hard to comprehend how that could have required quite so much effort.
Arne points out that the fee isn’t applied consistently, either: the same request made to a number of similar institutions (for example universities) will result in some information being provided for free, while others charge.
Finally, he says it’s clear that some people are intimidated by the mere possibility of being charged. Auto-replies from the Foreign Office include details of possible costs, whether or not they apply, which can be very off-putting for inexperienced users.
In response, FOI-championing website Atlatszo.hu got together with other NGOs to put together this damning assessment:
The new law gives state institutions the option to deny information requests [..] if they involve preparation for “future decision”, but most importantly, it introduces a requirement that those who approach various institutions for information may have to pay for their queries.
The various state bureaus may charge a fee if they decide that the request for information places an unwarranted additional workload on the staff. Besides being highly arbitrary grounds for denial, the financial costs are a natural deterrent to even attempting to find out important information.
The organisation also predicts that fees will lessen the will of average people to file requests. Here’s an excerpt from a recent interview with Atlatszo.hu’s Editor-in-Chief :
“They are charging fees so people won’t file so many requests,” says Bodoky, adding that while Atlatszo isn’t very happy with the situation, it won’t be deterred. “We will pay the small fee and continue to make requests, but citizens and activists who have started to use freedom of information quite a lot may not want or be able to.”
Richard Hunt, who runs the FOI site Informace Pro Všechny, as well as actively using FOI here in the UK, tells us that in the Czech Republic, there is no statutory charge for requests. However a clause states that costs can be recovered.
There have been high profile cases reported by the press, because the press were the requesters.
When HN (a leading financial daily newspaper) asked the finance ministry to provide the details under the Freedom of Information Act of the Kč 6.2bn in tax payments and penalties that have been forgiven since 2006, the ministry asked for processing fees of more than Kč 250,000. (£6,500).
Richard also tells us that the costs requirement both adds to the bureaucracy around requests, and acts as a disincentive for people making requests. In order to collect the money, public bodies require the name, address and date of birth of all requesters.
In a post-communist society people remain wary of showing themselves, especially in causing potential trouble for the authorities.
In the USA, fees may be levied based on the amount of work required, as calculated by the public body receiving the FOI request.
Our friends at Muckrock highlight two cases where the costs would have been at levels far beyond the reach of ordinary requesters: $270,000 for details of contracts between the FBI and a contractor, and $452,000 for summary information on a mail surveillance program.
While we imagine that the cost structure would differ here in the UK, these cases serve as an extreme example of how, if bodies wish to, they can use restrictions to ensure that their information remains inaccessible.
A similar story comes from RightToKnow in Australia, who were stymied by this move when trying to investigate the treatment of immigrants in detention centres:
While the authorities did not simply refuse to respond to requests for information, they found a way to evade their duties, deciding that 85 varied requests (pertaining to different events and detention centres all across the country) could be counted as one. Then, having rolled them into a single request, they were able to declare that it fell under the banner of ‘an unreasonable amount of effort’ required to respond.
In Australia, the exact clause is “the work involved in processing the request would substantially and unreasonably divert the resources of the agency from its other operations”—and we’re told that this is one of the most-commonly used reasons for refusing access.
Sometimes it’s used fairly but more often than not it’s used by agencies to interpret the request in such a way as to create the “practical refusal reason”.
In the UK, we’re looking at a lowering of the threshold for requests to be refused because of cost, which equates to the effort, or manhours, involved.
Fees are not applicable across all kinds of request in Australia, but where they are, they can be used in a way that’s contrary to the spirit of the law:
At the state level there are application fees across every state and territory (except the ACT). RightToKnow has a number of examples where it appears agencies are deliberately using application fees to frustrate requesters.
The Spanish site Tu Derecho A Saber tells us that costs and bureaucratic processes have a severely dampening effect on the number of citizens who are willing to make requests. They draw a parallel with WhatDoTheyKnow: in our first year of operation, we processed over 19,000 FOI requests. But in the same time period, Tu Derecho A Saber saw just 3,400 requests.
Spain’s FOI law also protects internal discussions, along with drafts, communications and papers considered before writing up any regulation.
They’re also fighting against a general lack of adherence to the FOI laws by public bodies. The result of all of these impediments? A drop in the number of requests processed, which have gone from 160 a week, to around 6.
Inevitably such restrictions have an effect on how FOI is perceived:
Frustration makes people see FOI laws as useless or too relaxed.
- In Israel, requests are limited to whatever can be gathered within four hours’ work. This effectively limits responses to information which has already been prepared.
- In Ukraine, the ability to mark information as ‘for internal use only’, and a highly bureaucratic system for making requests, led to a culture of concealed corruption.
Why this matters
But there are wider implications, too. At AlaveteliCon, we learned that other countries look to the UK (and WhatDoTheyKnow) as a shining example of how things could be. Any change in our laws will have an effect far beyond our own boundaries.
If we’re to keep what, as became evident when we listened to the stories of others, for all its faults is a world-class FOI system, we need to take action now. See below for how you can do that.
Changes to the UK Freedom of Information Act are not a foregone conclusion. We can win the fight against the proposed restrictions — and we have examples to prove it.
At AlaveteliCon the Freedom of Information technologies conference, we heard of successful protests in:
Australia and Uruguay, where bodies were obliged to accept requests via email
Hungary, where the government’s attempts to label requests as ‘vexatious’ was overturned
If you feel strongly that your right to information should not be impeded, check these simple actions you can take right now.
1. If you have 60 seconds: sign a petition
Sign the 38 Degrees petition to Protect FOI laws.
If you’re a journalist, you can sign the Hands Off FOI petition, too.
2. If you have 5 minutes, write to your MP
Use WriteToThem.com to tell your MP why Freedom of Information is important and how restrictions would affect you, or society as a whole.
3. If you have 10 minutes, submit an FOI story
SaveFOI are collecting stories of how Freedom of Information has made a difference to individuals and organisations. Here’s how to contribute.
Ireland: Brad Herman; Germany: Roger Matthewes; Hungary: Xavi; Czech Republic: Abejorro34; USA Hien Nguyen; Australia: Andrea Ferrera; Spain: Javi Muro; Elsewhere: Ilya Grigorik; Why this matters: Anders Sandberg; Successes: Joãokẽdal (all CC)